Non-Bailable Warrant Under Section 138

If you are the complainant and the person who gave you a bad cheque is dodging court, getting a non-bailable warrant (NBW) is your way of forcing their appearance. First, ensure the court has issued a summons and a bailable warrant that were either ignored or returned "undelivered" because the accused is hiding. You must then file an application through your lawyer, showing the Magistrate that the accused is willfully avoiding the law and frustrating the trial. Once the Judge is satisfied that milder steps have failed, they will issue an NBW under Section 87 CrPC (Section 90 BNSS). This authorizes the police to arrest the accused and bring them directly to court. It’s a powerful tool to stop the "hide and seek" game and move your case toward a final judgment. In this blog, you will read about the legal aspects of a non-bailable warrant in the Section 138 Cheque Bounce case.

Summary Details

While Section 138 of the Negotiable Instruments Act is technically a bailable offense, a Magistrate has the authority to issue a non-bailable warrant (NBW) if the legal process is being stalled. This power stems from Section 87 of the CrPC (updated to Section 90 of the BNSS, 2023), allowing the court to take stricter action when standard summons are ignored. In practice, an NBW is not the first step. Courts usually wait until a previous bailable warrant has failed or if there is clear evidence that the accused is intentionally "playing hide and seek" with the law. Following the landmark Inder Mohan Goswami (2007) precedent, judges use this tool only when they are convinced that the person is willfully avoiding their day in court. If an NBW is issued against you, it can be managed by filing a recall application in the same court to explain your absence. Alternatively, one can approach the High Court under Section 482 of the CrPC (Section 528 BNSS) to seek relief and ensure the trial continues smoothly.

Can a Non-Bailable Warrant Be Issued Under Section 138 NI Act?

Yes, a non-bailable warrant (NBW) can absolutely be issued in a Section 138 cheque bounce case, even though the offence is bailable by nature. The Magistrate’s power to do this doesn't come from the NI Act itself but from Section 87 of the CrPC (which has now transitioned to Section 90 of the BNSS). Think of it this way: The "bailable" nature of the crime means that once you are in front of the judge, you have a right to be released on bail. However, the "non-bailable" nature of the warrant is just a tool the court uses to ensure you actually show up. Many people think, "If I am accused of a bailable crime, the police can't just barge in and arrest me without a choice." While that’s generally true for the crime itself, the court has a duty to finish the trial. If the court sends a summons and you ignore them, or sends a bailable warrant and you hide, the court’s only remaining "muscle" is the NBW. The Supreme Court of India has repeatedly cautioned that an NBW should not be a Magistrate's first instinct. In a land governed by personal liberty, jumping straight to an arrest warrant for a financial matter is seen as "drastic." However, if you've been "playing hide and seek" with the court, the law loses its patience.

Understanding Section 138 of the NI Act

Before we dive into the warrants, let’s quickly recap why we are here. Section 138 of the Negotiable Instruments Act, 1881 was created to maintain the "sanctity of the cheque." In simpler terms, it’s there to make sure people don't go around handing out pieces of paper that have no value. A "Cheque Bounce" occurs when a bank returns a cheque unpaid due to the following:

1. Insufficient funds.
2. Signature mismatch.
3. Account closed.
4. Stop payment instructions.

To trigger a case under Section 138, the complainant must send a legal notice within 30 days of the bounce. If the drawer (the person who gave the cheque) fails to pay within 15 days of receiving that notice, a criminal complaint is filed. It’s a "quasi-criminal" offence, meaning it’s a mix of a civil dispute and a criminal punishment.

Why Courts Issue an NBW Even Though Section 138 Is Bailable

Th To understand how a non-bailable warrant under Section 138 comes to life, we have to look at the Code of Criminal Procedure (CrPC) and its modern successor, the BNSS.

1. Section 87 CrPC / Section 90 BNSS

This section allows a Magistrate to issue a warrant "in lieu of, or in addition to, a summons." If the court sees that you are deliberately not coming to court, they switch from a polite request (Summons) to a forceful command (Warrant).

2. Section 70 CrPC / Section 72 BNSS

An arrest warrant must be in writing, signed by the presiding officer, and bear the seal of the court. A non-bailable warrant issued in a Section 138 case remains in force until one of two things happens:

• It is executed (you are arrested).
• It is cancelled/recalled by the court that issued it.

3. Section 71 CrPC / Section 73 BNSS

This is a "pro tip" many don't know. Even when issuing a warrant, a Magistrate can endorse it with a note saying, "If the person provides a security of X amount and a surety, they may be released." This essentially turns an NBW into a bailable one at the point of arrest. However, in many Section 138 cheque bounce cases, courts skip this if they feel the accused is intentionally absconding.

When Will the Court Issue an NBW Under Section 138?

Courts do not just hand out non-bailable warrants in Section 138 cases as it is. There is usually a trail of ignored paperwork leading up to it. Here are the most common triggers:

1. Repeated Absence: If you miss 2 to 3 consecutive hearings without a "Bila-Hajri" (application for exemption), the judge will likely lose patience.
2. Ignoring Bailable Warrants: Usually, the court first issues a Bailable Warrant (BW). If the police return that warrant saying "The person refused to sign" or "The person was hiding," the next step is an NBW.
3. Wilful Avoidance: Following the Inder Mohan Goswami v. State of Uttaranchal (2007) standard, if the court is satisfied that you are "wilfully frustrating the process of law," an NBW is issued.
4. Incorrect Address/Absconding: If you’ve moved houses without informing the court or provided a fake address to the complainant, the court views this as a flight risk.
5. Breach of Bond: If you were already on bail but failed to show up for the final judgment or a crucial cross-examination, your bond is forfeited and an NBW is issued.

Crucial Supreme Court Caveat: In Raghuvansh Dewanchand Bhasin v. State of Maharashtra (2012), the court made it clear: An NBW should be the last resort, not the first step. It should only be used when it is absolutely necessary to ensure the presence of the accused.

What Happens After an NBW Is Issued?

Once a non-bailable warrant is issued in a Section 138 matter, the police are officially authorized (and commanded) to find you, arrest you, and produce you before the Magistrate.

• Police Visit: The local police station in your jurisdiction receives the warrant. They may visit your home or workplace.
• Arrest: Unlike a bailable warrant, the police cannot release you on the spot by taking a bond. They must bring you before the judge.
• Court Appearance: Once produced, the judge will ask why you weren't showing up. If your explanation is weak, you could be sent to judicial custody (jail) until the next hearing, though this is rare in cheque bounce cases if you are willing to settle or provide strong sureties.

How to Cancel a Non-Bailable Warrant Under Section 138: Step-by-Step

If you just found out there is an NBW against you, do not panic. It is a serious situation, but it is fixable. The process of removing an NBW is called "recalling" the warrant.

Step 1: Engage a Criminal Lawyer Immediately

You need someone who knows the local "vibe" of the court. A lawyer who frequently practices in that specific District Court will know how that particular Magistrate views Section 138 non-bailable warrants.

Step 2: Gather Your Evidence

Why were you absent? The court needs a reason better than "I forgot."

• Medical Issues: Hospital discharge papers or a doctor’s certificate.
• Travel: Flight/train tickets showing you were out of the country/state.
• Lack of Notice: Evidence that the summons was sent to a wrong address or never delivered.

Step 3: Draft the Recall Application

Your lawyer will draft an application under Section 70(2) CrPC (or relevant BNSS provision). This application must:

• Explain the reason for the previous absence.
• Express "unconditional regret" for the delay.
• Give a formal undertaking that you will attend every single future date.

Step 4: Surrender and Appear in Person

Most Magistrates will not recall an NBW if only the lawyer shows up. You usually have to be physically present in the courtroom. This is the "scary" part, but it shows the court you are respecting their authority.

Step 5: Post the Bond and Sureties

The court will likely "recall" the warrant upon the payment of a small fine (cost) for wasting the court's time and by asking you to furnish a Personal Bond and a Surety (someone who guarantees you will show up).

Step 6: Escalation

If the Magistrate is particularly harsh and refuses to recall the warrant, your lawyer can move to the High Court under Section 482 CrPC (Inherent powers of the High Court) to get the warrant stayed or quashed.

Pro-Tip: Always try to file your recall application first thing in the morning (around 10:30 AM - 11:00 AM). Courts are generally more inclined to hear urgent "surrender and recall" matters before they start the heavy trial list for the day.

Landmark Case Laws Every Accused (and Lawyer) Should Know

A few case laws are:

Inder Mohan Goswami v. State of Uttaranchal

Facts: This landmark case centers on a dispute involving the cancellation of an agreement to sell land. The appellants were accused of criminal conspiracy, cheating, and forgery. They approached the High Court to quash the proceedings, but their plea was dismissed, leading them to appeal to the Supreme Court.

Judgement: The Supreme Court set aside the High Court's order, ruling that the dispute was purely civil in nature and lacked criminal intent. More importantly, the Court laid down strict guidelines for issuing warrants. It held that non-bailable warrants (NBWs) should be a last resort, used only when it is absolutely necessary to ensure the presence of the accused. The judgment emphasized balancing the needs of law enforcement with the fundamental right to personal liberty, cautioning against using NBWs as a tool for harassment.

Raghuvansh Dewanchand Bhasin v. State of Maharashtra

Facts: In this case, a non-bailable warrant (NBW) was issued against an advocate despite the offence being bailable. Although the court later stayed the warrant, the police, due to a lack of communication and proper records, arrested and humiliated the petitioner anyway. This highlighted a major systemic failure in how warrants are managed and cancelled.

Judgement: The Supreme Court ruled that an NBW should be a last resort, used only when summons or bailable warrants fail to secure attendance. It emphasized that "personal liberty" is a fundamental right. The Court issued strict guidelines, directing that warrants must be handled with care and that cancellation orders must be immediately communicated to the police to prevent wrongful arrests.

Conclusion

While a non-bailable warrant in a Section 138 case can feel overwhelming, it is primarily a procedural tool used by the court to ensure the trial moves forward. Under Section 87 CrPC (Section 90 BNSS), the law balances the bailable nature of the offence with the necessity of the accused's presence. Landmark rulings like Inder Mohan Goswami and Raghuvansh Dewanchand Bhasin remind us that while the court’s patience has limits, your personal liberty remains a priority. If you find yourself facing an NBW, the best strategy is transparency. By filing a recall application promptly and offering a sincere undertaking to attend future hearings, you can resolve the warrant and refocus on the merits of your case. Respecting the court’s authority is the fastest way to get back on track.

Disclaimer: This blog is for informational purposes only. If you need legal consultation, please contact an experienced civil lawyer.